Equal treatment of unequals perpetuates inequality
To do away with reservations, we must first reconstruct our social relations that are still strongly influenced by caste
Abdul Khaliq, Secretary General, Lok Janshakti Party
Bump ahead Anti-reservationists have traditionally used merit as a stick to vilify the Dalits
FOR THE governing elite, discrimination against Dalits is an overblown problem that is actually a thing of the past. They believe reservation in government jobs and academia only serves the negative purpose of perpetuating the caste system. Predictably, the chorus against reservation is spearheaded by the middle class whose philosophy is the naked pursuit of personal advantage devoid of a social conscience. However, for the purveyors of the myth that caste no longer determines one’s life chances, certain news reports from the past few days should be an eye-opener.
In a village 120 km from Bhopal, the 20-odd Dalit children in the government school are provided segregated seating in the classroom, at arm’s length from their peers. At meal times, they are served only leftovers, and that too, a tiny portion. In Coimbatore, 1,000-plus Dalits forcibly entered the 120-year-old Mariammam temple, which had been out of bounds for them. Another news snippet on data released by the RBI shows that between 2004 and 2012, the lowest percentage increase in wages in rural areas was that of sweepers and cobblers — traditionally Dalit occupations — which was even lower than that of unskilled farm labourers.
For those who would brush these off as isolated examples, the details of atrocities against Dalits should correct the misconception. According to home ministry estimates, there were 26,650 atrocities (murder, abduction, rape, kidnapping and arson) in 2006, followed by 29,825 in 2007 and 33,365 in 2008. Mind you, these are only partial figures, as most Dalits suffer in silence. So ingrained is caste in our collective consciousness that even a Dalit who converts to Christianity or Islam or Sikhism continues to be hobbled by his social origins. Mahatma Gandhi had this to say about the plight of even converted Dalits: “Whether the Harijan is nominally a Hindu, Christian, Muslim or Sikh, he is still a Harijan. He can’t change his spots from Hinduism. He may change his garb and call himself a Catholic Harijan or a Muslim Harijan, but his untouchability will haunt him during his lifetime.”
Caste consciousness is a part of our everyday lives; its universality renders it normal. However hard we may delude ourselves, we are all scarred by it. Cultural attitudes about caste that have evolved over the ages are internalised by individuals as unquestioned facts. A plainly irrational, wicked belief in Dalit inferiority is embedded in our culture. A common perception is that Dalits are being treated fairly and if they continue to be at the bottom of the hierarchy, it is on account of their inherent inferiority.
Most of us would like to believe we have transcended caste bias and are normally correct in our dealings with Dalits. But the subterranean volcano of prejudice erupts in case the Dalit breaches the invisible caste wall by asking for your daughter’s hand in marriage, or seeks employment in your house as a cook, or aspires to be a priest in the neighbourhood temple. Then, he is shown his rightful place — that of a pariah. A Dalit who aspires to rise above his ordained subaltern status is exposed to deep psychological injury through an assault on his selfrespect and dignity. How often has one heard the heartless comment, “For an SC, he’s quite smart,” or the deeply hurtful, “You don’t look or behave like an SC.” BR Ambedkar was prescient when he observed: “On 26 January 1950, we will be entering into a life of contradictions. In politics we will have equality, and in social and economic life, we will have inequality.”
The raison d’être for reservation for SCs/STs was not merely economic (indeed, poverty existed across the castes and communities), but it was untouchability and all its painful consequences. Through the various Constitutional provisions for the SCs/STs, our founding fathers wished to eradicate social stigmatisation from the social milieu. The reservation controversy of the day is about the most victimised section of our society claiming jobs and promotions in government proportionate to their number in the population — an unexceptionable proposition.
Even in the limited sphere where the SCs/STs are beneficiaries of affirmative action, the statistics of Dalits in the various tiers of the hierarchy is a damning indictment of the system. For example, as of March 2011, out of 149 secretary-level posts in the Centre, there was not a single SC officer. Within Group A services, despite reservations since 1955, there are only 11.1 percent SCs and 4.6 percent STs, much below the mandated quota. Out of all Central government employees, 17 percent are SCs and 7.4 percent are STs — a misleading figure, however, as SCs and STs constitute 45.5 percent of the safai karamcharis (sweepers) employed by the government, in keeping with the centuriesold practice of assigning the lowest jobs to the dispossessed.
NO BODY SEEMS threatened by the fact that Dalits have a disproportionate share of the safai karamchari jobs. In fact, the heartless resentment against reservation become more worrying when one considers that reservation is restricted to only a fraction of the millions of jobs available where Dalits are marginalised due to their socio-economic condition.
Our founding fathers recognised that social and economic justice would remain a pipedream so long as the lot of the SCs/STs was not improved drastically. Hence, there are provisions such as Article 46 under the Directive Principles, which enjoins upon the State “to promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the SCs and STs, and to protect them from social injustice and all forms of exploitation”. As interpreter and protector of the Constitution, the courts cannot escape engaging proactively in this solemn commitment.
Two Supreme Court judgments, in essence, represent the apex court’s philosophy on the contentious issue of reservation. In the M Nagaraj vs Union of India judgment of 2006, the court directed that each case of reservation in appointment and promotion would have to be justified on the grounds of backwardness and inadequacy of representation, also taking into account the requirements of efficiency. In another landmark judgment of April 2012, in the UP Power Corporation vs Rajesh Kumar case, the Supreme Court struck down reservations in promotions on the grounds that the criteria laid down in the Nagaraj case had not been complied with. These judgments are problematic and raise more questions than they answer.
The Supreme Court has, time and again, emphasised that courts are bound by precedent. Yet, in the Nagaraj case, the five-judge Bench set aside an earlier Supreme Court ruling in the Indra Sawhney case in which the nine-judge Constitutional Bench had emphasised that “the test or requirement of social and educational backwardness cannot be applied to SCs and STs who indubitably fall within the expression ‘backward class of citizens’”. This principle has been ignored in the Nagaraj case and the ‘creamy layer’ among SCs/STs debarred from the benefits of reservation, without any justification for the change in stance. Significantly, neither judgment has clarified whether the ‘creamy layer’ principle will apply only to promotions of SCs/STs or also at the time of their recruitment. Any court can cite these judgments and strike down future recruitments that include the ‘creamy layer’ on the irrefutable logic that the principle must apply uniformly to recruitment and promotions.
Even while observing that social justice is an overarching principle at the pinnacle of Constitutional values, the two judgments have viewed the issue of reservation in purely economic terms by invoking the issue of ‘creamy layer’. This argument insidiously obfuscates the terrible damage that social disabilities have caused the Dalits. Everyone knows that if you do not have the means, neither health nor a meaningful education or a white-collar job is available to you. It is utopian to believe that the Dalits from the bastis are equipped to compete for the IAS or PCS. Elimination of the creamy layer would result in Dalits not qualifying in sufficient number for the seats earmarked for them. Even today, although IITs have reservation at the entry level of assistant professor, the actual representation of SCs/STs in these premier institutes is less than 4 percent. Social scientists have attributed this phenomenon to their depressed socioeconomic position and consequent educational backwardness.
THERE IS another problem in implementing the Supreme Court order regarding ‘backwardness’. The scheme could lead to reservation within reservation. For instance, an SC officer may be the son of a rich farmer, whereas another SC officer may pass the test of backwardness on account of his humble origins. Will the claims of the senior SC officer from the ‘creamy layer’ be overlooked and his junior promoted? Clearly, the Supreme Court’s decision will result in endless litigation on the grounds that the original service conditions have been altered. Moreover, can anyone who is appointed an officer, with its attendant salary and perks, be considered backward?
The Supreme Court’s insistence on the State proving “inadequacy of representation” seems reasonable, but there is a sting in the tail. The court has gratuitously held the cadre as the unit for assessing adequacy of representation. This implies that if SCs are 15 percent and SCs are 7.5 percent of the cadre strength, there is adequacy of representation. Consequently, the present absence of the SCs/STs from the upper echelons of bureaucracy will continue.
By raising the issue of “efficiency in administration”, the Supreme Court has implied that reservations would compromise administrative efficiency. There is the unconscious stereotyping of Dalits as unintelligent and incompetent. As a rule, every government official, not just the Dalit, is required to pass the test of efficiency in his daily functioning. When a panel is drawn up for promotion, the competence of each individual is assessed on the basis of certain norms, including efficiency. But the Supreme Court specifically requires reserved candidates to prove their credentials, which is bound to adversely impact their career prospects. An individual’s professional worth is often decided on considerations unrelated to merit. The annual confidential report has been used with devastating effect to keep Dalits from the higher echelons. For promotions to the level of additional secretary and above, an officer must be graded ‘outstanding’ in at least two of the preceding five years, and obtain a minimum of ‘very good’ rating in the other three years.
A large number of Dalit Group A officers do not have the requisite grades to merit promotion. The confidential report of one particularly bright Dalit officer contained the following entry in the column relating to initiative: “He (Dalit officer) has an extremely competent set of assistants who have ensured prompt disposal of the work.” Predictably, the ‘average’ rating was enough to ensure that he did not qualify for promotion. In a caste-conscious environment, assessing a Dalit as ‘outstanding’ is often considered blasphemy.
A plainly irrational, wicked belief in Dalit inferiority is embedded in our culture
The court ruling on efficiency as a salient requirement for reservation in promotions has been joyously greeted by anti-reservationists who have traditionally used the phony pennant of merit as a stick to vilify the Dalits, although in bureaucracy, merit has little to do with “making it”. Recruitment and promotion policies are supposedly based on impersonal job criteria, but the actual practices are guided by personal loyalty, nepotism and other extraneous factors.
The Supreme Court judgments have placed equality of opportunity, in its narrowest literal sense, above social justice. By fixing the entire burden of persuasion and proof on the Dalit, the apex court is open to the criticism that the seductive power of ‘equal opportunity’ is being used as a tool for maintaining the hegemony of the governing elite. Indeed, equal treatment of the unequal is an insidious way of perpetuating inequality. But then, like a judge famously remarked in another context, the Supreme Court in this case, it would appear, has acted as a court of law, not as a court of justice.
From all accounts, Parliament is poised to amend the Constitution to overcome the hurdles created by these judgments. However, this will not be an easy ride if the ominous warnings of the court are any indication. In the Nagaraj case and again in the Rajesh Kumar case, the apex court has warned: “If the appropriate government enacts a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335, then the court will certainly set aside and strike down such legislation.” The conviction of the court about the rightness and finality of its interpretation of the law seems misplaced, especially when one considers the fact that on the issue of the backwardness of SCs/STs, the Supreme Court has expressed contradictory views. In all fairness to the most vulnerable section of our society, Parliament is duty-bound to amend the Constitution to ensure reservation in promotion for SCs/STs at every level, while making sure that the mandated quota is not exceeded.
Finally, if we have to do away with reservation, we have to reconstruct our social relations in order to mend the social cleavage. For that, we first need to recognise how caste influences the way social and economic privileges are enjoyed, how it determines the nature of human interaction, and how it influences our justice system. Only after such soul-searching and realisation can we begin working towards a society of common citizenship where all citizens are equal and treated equally.
(The views expressed in this column are the writer’s own)